Paul v. Amos Berry.

• Decision Date: 30 June 1875
• Citation: 78 Ill. 158,1875 WL 8446
• Parties: JOHN S. PAULv.AMOS BERRY.
• Court: Illinois Supreme Court

78 Ill. 158

1875 WL 8446 (Ill.)

JOHN S. PAUL

v.AMOS BERRY.

Supreme Court of Illinois.

June Term, 1875.

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

On the 30th of August, 1870, David D. Berry, John Berry, Amos Berry, John S. Paul, John Henry and Daniel G. Gilham

ham executed their promissory note in writing, whereby they jointly promised to pay the board of trustees of schools of township 4, range 9, in the county of Madison, etc., $600, with interest at ten per cent per annum, payable semi-annually, in advance, etc. After the maturity of the note, judgment was obtained against the makers, which was ultimately paid by Amos Berry.

The present suit is brought by Amos Berry against John S. Paul, to recover from him, as a co-surety on the note, his aliquot share of the amount which Amos Berry has paid on the judgment.

The suit was instituted before a justice of the peace of Madison county, whence, after judgment, it was appealed to the circuit court of that county. The case was tried in that court at its March term, 1875, when the jury, under instructions of the court, rendered a verdict for the plaintiff, for $148.51. Motion for a new trial was made by defendant, but overruled by the court, and the court thereupon gave judgment upon the verdict of the jury, to reverse which the defendant prosecutes this appeal.

The errors assigned question the rulings of the court below in allowing improper testimony to go to the jury, in excluding proper testimony offered by the defendant, in giving and refusing instructions, and in overruling the motion for a new trial, and rendering judgment on the verdict of the jury.

Mr. CHARLES P. WISE, for the appellant.

Messrs. METCALF & BRADSHAW, and Mr. HENRY O. BILLINGS, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

From the face of the note, the makers appear to be jointly liable to the payee as principals, and that the plaintiff was so liable, together with the other makers, was admitted by his failure to make defense when suit was brought on the note, and this is all that is established by the record of the judgment in that case. As between the makers, there arises no presumption, simply from the note or the judgment, that the first signer, or any other number less than the whole, is or are to be treated as principal or principals, and the others as co-sureties, but it rests in evidence, to be introduced aliunde the note and judgment, to determine what relation they sustain towards each other. The burden is upon the plaintiff to prove that he is a surety, not only as between himself and his father, David D. Berry, whom he claims to be principal, but also as between himself and the defendant, for, notwithstanding where it is established that two or more persons are co-sureties, and one of them pays the debt for which they are liable, he may have contribution from the others to the extent they are thereby relieved, it is well settled that co-sureties may, by agreement among themselves, so far sever their unity of interest and obligation as to terminate the right of contribution. 2 Chitty on Conts. (11 Am. Ed.) p. 894, and note; Moore v. Isley, 2 Devereux & Battle's Equity, 372, 374; Baggott and another v. Mullen, 32 Ind. 332; Harris v. Warner, 13 Wendell, 400; Barry v. Ransom, 12 N. Y. (2 Kernan,) 464.

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